- The Washington Times - Tuesday, May 21, 2002

A unanimous Supreme Court ruled yesterday that an indictment's technical error does not shield "large-scale" drug criminals from the maximum sentence.

"The fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments," said the 9-0 opinion that threw out portions of a historic and often cited 1887 Supreme Court decision.

Members of a Baltimore drug gang sought to have their sentences reduced because of an error in court documents. But in a strongly worded ruling written by Chief Justice William H. Rehnquist, the court unanimously condemned such use of technicalities in cases where the defendant's guilt is clearly established.

"Even assuming [defendants] substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings," Chief Justice Rehnquist wrote.

"The real threat would be if [criminals], despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial," the court said.

While the decision primarily keeps mistakes from thwarting justice, the president of an anti-crime legal group found hope in the court's blunt words.

"This indicates the court is united in agreeing that the process is not going to be more important than the evidence and the truth in the case," said Michael Rushford of the Criminal Justice Legal Foundation in Sacramento, Calif. "The evidence is clear, and the danger is substantial. We're very encouraged, and the public should be encouraged as well."

Yesterday's decision overturned portions of a 115-year-old ruling, known as "Ex parte Bain," that nullifies jurisdiction when a trial considered matters not charged in a grand jury indictment.

The ruling yesterday kept seven members of what the court called a "vast drug organization" in Baltimore from escaping sentences of up to life in prison.

Gang leader Stanley Hall Jr. and six conspirators received sentences higher than the 20-year maximum under guidelines that apply when large amounts of crack cocaine are involved. The high court decision said jurors saw "overwhelming" evidence of large-scale dealing, even though the final indictment accidentally omitted specific amounts of drugs.

The 1887 ruling said, "A defective indictment cannot be aided by a verdict." That premise was applied when the 4th U.S. Circuit Court of Appeals said Hall's gang effectively "received a sentence for a crime with which they were neither charged nor convicted."

Timothy J. Sullivan of College Park, who argued the prisoners' case in the Supreme Court five weeks ago, was unavailable yesterday, and the U.S. attorney's office in Baltimore did not reply to calls.

The decision favoring prosecutors ran counter to perceptions that technicalities always favor criminals. "By saying it's not a jurisdiction issue, they're stopped a million habeas corpus writs by everyone who was convicted of a drug offense and got more than 20 years," said John K. Zwerling of Alexandria.

Mr. Zwerling, a criminal defense lawyer, has written about the application of the Bain decision in the high court's Apprendi ruling two years ago. The Apprendi decision required that virtually every fact used to make a sentence more severe be charged in the indictment and proved to the jury.

"They're telling attorneys they have to constantly file what might appear to be frivolous motions and make frivolous objections if they want to serve their clients. I don't think that serves justice well," said Mr. Zwerling, who wrote a Georgetown Law Review article interpreting Bain. His view is that, even when defendants do not object, an appeals court must notice the error and rule a trial court without jurisdiction to try, convict, take a guilty plea or sentence someone "for an offense not charged in the indictment."

Tracy Power, a Washington lawyer appealing an inmate's conviction for escaping from a penal institution while he was under commitment at his home but not yet confined, quoted the Bain decision heavily in her brief.

"Bain always is the starting point for analyzing the validity of an indictment. When you overturn Bain, you're overturning something that is fundamental, that stood the test of time," Miss Power said yesterday.

Vanderbilt University law professor Nancy J. King said the ruling will short-circuit hundreds of similar arguments from pre-2000 convictions already jamming the appeals courts. Two related cases awaiting the justices' decision by next month involve penalties for crimes involving weapons and whether the judge or jury has the last word in death sentences.

Among more than 400 published decisions citing Bain over the years was U.S. District Judge Harold H. Greene's 1989 order limiting government options in revising the indictment accusing John M. Poindexter of conspiracy in the Iran-Contra case.

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